Klein v. Terra Chemicals Intern., Inc.

• Citation: 286 A.2d 568,14 Md.App. 172
• Decision Date: 28 January 1972
• Docket Number: No. 276,276
• Parties: Catherine KLEIN v. TERRA CHEMICALS INTERNATIONAL, INC., et al.
• Court: Court of Special Appeals of Maryland

Page 172

14 Md.App. 172

286 A.2d 568

Catherine KLEIN v. TERRA CHEMICALS INTERNATIONAL, INC., et al.

No. 276.

Court of Special Appeals of Maryland.

Jan. 28, 1972.

Certiorari Denied April 11, 1972.

H. Emslie, Parks, Towson, with Parks, Parks & Schneider, Towson, on brief, for appellant.

Nevin E. Leese, Baltimore, for appellees.

Argued before MURPHY, C. J., and MORTON and CARTER, JJ.

MURPHY, Chief Judge.

The sole question presented by this workmen's compensation appeal is whether the accidental injury sustained by George Klein in the course of his employment with Terra Chemicals International, Inc. (Terra Chemicals), which resulted in his death, was one 'arising out of' such employment within the contemplation of Maryland Code, Article 101, Section 15. ¹

The pertinent facts are these: Klein was engaged by Terra Chemicals as a consultant, having previously been employed in a similar capacity be W. R. Grace & Co. It was Klein's responsibility to investigate the potential for marketing potash in the eastern part of the United States and to develop any other business potential which would be profitable for Terra Chemicals. As part of this employment, Klein was expected to attend various conferences and conventions in order to ascertain where potential business might lie. In addition to a fixed monthly fee, Klein was provided with an expense account covering meals, lodging, transportation, entertainment, and other business-related expenses.

On November 5, 1969 Klein registered at the Mayflower Hotel in Washington, D.C. where a large annual convention composed of several hundred representatives of the fertilizer industry was being held. The convention was to last several days and Terra Chemicals had agreed that Klein should attend and that it would pay his expenses. On the evening of November 5, Klein, in company with two representatives of the W. R. Grace & Co., and another from Kalium Chemicals, went to a public restaurant to have dinner. During the course of the meal, Klein ceased conversation, stopped eating, and sat immobilized at the table. He neither coughed, choked, nor made any expression of complaint. Subsequently, he was taken by ambulance to a hospital where a piece of meat was removed from the back of his throat. As a result of this tragic mishap, Klein died twelve days later, the cause of death being listed as 'cardio-respiratory arrest, secondary to airway obstruction.'

On these facts, the Workmen's Compensation Commission found that Klein's injury and death was compensable and awarded total dependency death benefits to his widow Catherine Klein, the appellant in this case. The employer-insurer appealed to the Circuit Court for Baltimore County where a jury, on issues submitted to it, concluded from the evidence that Klein had sustained an accidental injury arising out of and in the course of his employment. Thereafter, the trial judge, W. Albert Menchine, granted a judgment n. o. v. in favor of the employer-insurer, appellees herein. He concluded that while there was no evidence of direct business discussions at the restaurant, there was 'a permissible inference that Decedent (Klein) sought thereby to advance the interests of Employer,' and that consequently the jury could properly have found that Klein was in the course of his employment when the accident occurred. But as Judge Menchine viewed the Maryland law, for an accidental injury to 'arise out of' employment, it must be caused by a peculiar or increased risk to which the employee, as distinct from the general public, was subjected by his employment. Finding as a matter of law from the uncontradicted evidence in the case that the requisite causal relationship did not exist, Judge Menchine concluded 'that the injury and death of the decedent did not arise out of his employment.' This appeal followed.

The words 'arising out of' and 'in the course of' employment, as used in Section 15 of the Workmen's Compensation Act, are not synonymous and both must be satisfied by the workman to bring his case within the Act's coverage. Perdue v. Brittingham, 186 Md. 393, 47 A.2d 491. ² The words 'arising out of' employment refer to the cause or origin of the accident. Dept. of Correction v. Harris, 232 Md. 180, 192 A.2d 479. More specifically, as stated in Pariser Bakery v. Koontz, 239 Md. 586, at 589, 212 A.2d 324, at 326: 'An injury arises out of a claimant's employment when it results from some obligation, condition or incident of his employment. Whether it does must be decided from the facts and circumstances of each individual case. There must be a causal connection between the conditions under which the work is required to be performed and the ensuing injury. Thus, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment. However, it does not include an injury which can not be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been exposed away from the employment.' In other words, the causative danger must be peculiar to the work and not common to the neighborhood; it must be incidental to the character of the business and not independent of the relation of master and servant. Consol. Engineering Co. v. Feikin, 188 Md. 420, 52 A.2d 913; Schemmel v. T. B. Gatch and Sons, etc., Co., 164 Md. 671, 166 A. 39. If there is evidence that the work causes the act or event resulting in injury, it is immaterial that the same event might occur from any other cause or at any other place; if, however, the causal connection between the injury and the employment is not apparent, then unusual or extraordinary conditions of the employment, constituting a risk peculiar to the work, may establish the causal connection between the work and the injury. Scherr v. Miller, 229 Md. 538, 543, 184 A.2d 916, citing Perdue v. Brittingham, supra.

That Klein choked on a piece of meat at a public restaurant while in the course of his employment with Terra Chemicals was not, in our opinion, the result of any obligation, condition, or incident of his employment; it did not occur because of any business activity attributable to his work. Klein's accident did not follow as a natural incident of his work; it was not, within reasonable contemplation, the result of any special exposure occasioned by the nature of his employment. Nor could it be traced to his employment as a contributing proximate cause; it did not flow from a hazard peculiar to his work, or incidental to the character of his employment. The risk he encountered in the public restaurant of choking on a piece of meat was no greater or different in degree because of his employment than the risk experienced by all persons engaged in the process of eating a meal, whether in a restaurant or at home. There is no evidence in the record to show that Klein's injury was caused by any unusual or extraordinary condition of his employment. There was no evidence in this case to support an inference that exigent work-related circumstances caused Klein to choke on his food. In short, there was...